Supreme Court to Hear Case About California’s Tough New Rules on Pork Production

The sun rises behind the U.S. Supreme Court in Washington on Nov. 10, 2020. Alex Brandon/AP Photo

The Supreme Court agreed on March 28 to review a voter-approved law in California that bans the sale of pork in the state from hogs raised anywhere in the world unless the animals were raised in a space that exceeds industry norms—a rule that U.S. pork producers say imposes massive new costs on out-of-state farmers.

The case is National Pork Producers v. Ross, court file 21-468.

The National Port Producers Council (NPPC) describes itself as an agricultural organization representing the interests of the $26-billion-per-year U.S. pork industry. Among its members are pig farmers, as well as the entire pork chain and associated businesses, such as veterinarians, pork packers and processors, and other allied businesses that serve the industry.

The high court will look at the so-called dormant commerce clause, or negative commerce clause, in the U.S. Constitution, which, according to the Legal Information Institute, forbids states from “passing legislation that discriminates against, or excessively burdens, interstate commerce.”

The case could have implications reaching well beyond agricultural law. State-level energy and climate regulations have also been challenged under the dormant commerce clause.

In 2008, California voters gave the thumbs-up to Proposition 2, the Prevention of Farm Animal Cruelty Act, which outlawed “gestation crates” for pregnant pigs, cages for egg-laying hens, and veal crates for calves. The measure didn’t, however, forbid sales of food that came from animals confined in prohibited ways. The proposition was approved on a vote of 63.42 percent “yes” to 36.58 percent “no,” Ballotpedia reports.

A decade later, California Proposition 12, the Farm Animal Confinement Initiative, appeared on the ballot in the Golden State on Nov. 6, 2018. The question was approved on a vote of 62.66 percent “yes” to 37.34 percent “no,” according to Ballotpedia.

The initiative establishes “minimum space requirements based on square feet for calves raised for veal, breeding pigs, and egg-laying hens and bans the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens, when the animals are confined to areas below minimum square-feet requirements.”

According to the petition filed by the industry, Proposition 12 makes it a criminal and civil violation “to sell pork in California, unless the pig it comes from was born to a sow—an adult female—that was housed with 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure.”

“Hardly any commercially-bred sows in the United States are housed with 24 square feet of space per sow, even those raised in group pens; and farmers almost universally keep sows in individual pens that do not comply with Proposition 12 during the period between weaning and confirmation of pregnancy, for animal health and business reasons,” the petition states.

It says the proposition is unconstitutional because “it is impermissibly extraterritorial.” California imports 99.87 percent of its pork.

“Because of the nature of the pork industry and its product—a pig progresses through multiple facilities outside California as it is raised, and is processed into many different cuts of meat that are sold across the country—Proposition 12, in practical effect, regulates wholly out-of-state commerce,” the petition states.

It adds that the proposition “requires massive and costly alteration to existing sow housing nationwide, necessitates either reduction of herd sizes or building of new facilities to meet its space mandates, raises prices in transactions with no California connection, drives farms out of business and promotes industry consolidation, and will be policed by intrusive inspections of out-of-state farms conducted by California’s agents.”

The meat-packing industry asked the Supreme Court in North American Meat Institute v. Bonta, court file 20-1215, to preliminarily enjoin Proposition 12’s provisions pertaining to the sale of pork and veal. The federal district court and the U.S. Court of Appeals for the 9th Circuit denied the request, and then the Supreme Court refused to take the case in June 2021.

The Supreme Court is expected to hear oral arguments in the new case in its term that begins in October.